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Editor’s Introduction

S. Senanayake, despite his patrician background and highly educated kinsmen, could claim little formal education beyond the selective school lessons at S. Thomas’ College, Mt. Lavinia, under Warden the Rev. W. A. Buck. Nonetheless, while moving a resolution on 9 November 1945 to accept the Soulbury Report’s recommendations on a new constitution the future prime minister of Ceylon informed the State Council, a legislative body full of Ceylonese educated in Britain’s ancient universities:

Although I have had no University education I have had “University instructions”, which are very good.[1]

Renowned for his straightforward and bucolic manner this was no riddle for those assembled. Hansard does not record the name of the person who gave Senanayake his “University instructions”, but all knew that it was the Englishman and Vice–Chancellor of the University of Ceylon, Dr W. Ivor Jennings. After Senanayake’s death in March 1952 Jennings publically recorded in a memorial issue of the Ceylon Historical Journal ‘[t]here have been few greater statesmen in the history of the British Commonwealth, and Ceylon owes a debt to his memory that will be difficult to repay’.[2] The two made an odd couple. Senanayake with his prosperous frame and background was a genial, near inarticulate Buddhist Sinhalese squire happiest working and tending his lands while Jennings was an austere, sardonic, cadaverous scholarship boy of English working–class stock invariably surrounded by piles of academic texts and plumes of cigarette smoke. Together, however, they were formidable and the relationship was clearly symbiotic. Almost on arrival in Ceylon on 22 March 1941 to take up his new post Jennings became Senanayake’s constitutional confidante. One other story may illustrate the intimacy of their relationship, as privately noted by Jennings, as well as their personalities.

The “sundowner” much impressed D.S. though himself a teetotaller, he was always tolerant of other people’s opinions and habits, and he considered that, if I liked a “sundowner” I ought to have one … “The Boss” wanted me at once [to help with drafting a letter to the CO] and would I bring a bag to stay at least a week? … On the table was a full bottle of whisky. Now, a bottle of whisky was unprocurable in London in 1945, and I had not had a “sundowner” for four months. Naturally I enquired where the bottle came from. I discovered that D.S. had made friends with the barman of his hotel and asked his advice. The barman had pointed out that the only way to get a bottle of whisky was to buy all the drinks in his bottle across the counter. D.S. did so, and so that bottle cost something like £5. It was a gross extravagance – which came out of his own pocket – and I would have stopped it had I known. Nevertheless, the story is worth the telling as an example of his tolerance and generosity.[3]

The question arises of why did Jennings come to Ceylon in 1941 at the age of 38? The Cambridge educated intellectual had forged a highly successful career at the London School of Economics (LSE). By the time of his arrival at Colombo harbour he had already completed four of his most prominent works The Law and the Constitution (1933), Cabinet Government (1936), Parliament (1939) and The British Constitution (1941), which would see multiple editions and indeed some remain in print to the present day. With such an impressive publishing record, hardworking reputation and intellectual capability the possibility of future laurels seemed bright with prestigious posts awaiting, which the Colombo position, at first sight, did not at all provide. The candidate was tasked with not only upgrading the University College to full University status and moving the campus from the capital to the countryside, but also functioning in an Asian environment far removed from the political buzz of global London or the cerebral assuredness of the Cambridge common room. Such an educational role in the East was made further problematic by relying on all things British when the majority of students and Faculty naturally found difficulty acclimatizing to unimaginative syllabi dutifully drawn from afar in the North Atlantic.

The pupil was not asked to work out the profit on a transaction in copra at so many rupees a candy, but the profit on a transaction in cotton at so many pence a pound. If a man cycled from London to Brighton . . . History was, of course, English history, and Ethelred the Unready was more important than Parakrama Bahu the Great. The student knew all about the English coalfields and had not the least notion where plumbago was found in Ceylon, still less why.[4]

However, for Jennings comfortable university life, despite his natural inclinations towards academic existence, was not what he craved. The commotion of war had stirred his long–held objective to be “involved”. He had offered to leave his LSE post for the duration of the war and contribute through government service not only to Britain, but also the colonial empire. This had been refused. Jennings took the post in Ceylon with these expectations in mind. In his posthumously published memoir Jennings added ‘I knew something about the constitutional problems of the Island, and in fact I think I was the only person in the world who was lecturing on them’.[5] He explained to the eager reporters on his arrival at Colombo.

He had applied, he said, for the post of Principal of the Ceylon University College because he felt that there was very little for him to do at the London School of Economics and Political Science under war conditions. On the other hand, they would not give him permission to go into Government Service until the end of the war. He felt that the post in Ceylon was one of responsibility, giving anyone scope for activity in real public learning.[6]

Soon as Deputy Civil Defence Commissioner he was actively helping with Ceylon’s defence against the feared Japanese invasion. However, another more political and less official role awaited. His self–reported expertise on Ceylon made the “scope” for political public service very real when Jennings arrived. The Ceylonese political leaders, soon to be under the leadership of D. S. Senanayake on the retirement of Sir Baron Jayatilaka in November 1942, were in the midst of negotiating further constitutional concessions from Britain with the clear goal of joining Canada, Australia, South Africa and New Zealand as an autonomous Dominion within the Commonwealth. “Dominion Status Senanayake” was quick to grasp that he had on the island one of the world’s foremost experts on British and imperial constitutional politics. One of Senanayake’s skills, according to Jennings, was that ‘he could distinguish between a thorough–bred and a hawk, whether human or otherwise’ and rightly or wrongly the constitutional beast he chose was the new vice–chancellor.[7] As Sir Oliver Goonetilleke proclaimed from the newly created Senate in December 1947: ‘We have the advice of the greatest living authority on Constitutional Law regarding the British Commonwealth – Dr Jennings’.[8] The new vice–chancellor could provide the intellectual and legal expertise Senanayake needed for his parley with the CO for independence. As A.W. Bradley notes in his academic life of Jennings using his subject’s autobiography

The Colonial Office, having initially appointed him Principal of the University College, were displeased by his role in constitutional affairs as adviser to the local Ministers. Jennings justified his role by saying that what he had done was ‘in strict accord with the university tradition’, but he later accepted that he ‘went a little further’ than merely giving technical advice when the First Minister asked for it.[9]

Thus a relationship was shaped of critical importance not only to each other, but also to Ceylon’s future. Jennings recognised this and said in his broadcast on the eve of his departure, almost 14 years after arriving, on 19 January 1955 “My most important unpaid job was that of constitutional adviser to Mr D.S. Senanayake. Some day I must tell that story at length, for it resulted in the independence of Ceylon”.[10] Senanayake and Jennings both prided themselves as sensible pragmatists and looked somewhat askance at the passions and protests seen across the Palk Strait. The negotiations and advice reflected this supposed realism. There was, for example, no question of Ceylon breaking its link with the Crown. To do so would be an ‘emotional luxury’.[11] As Jennings explained when discussing why Ceylon saw the need to include defence agreements with Britain as part of the independence “package” to the chagrin of the Leftists:

Ceylon is by tradition forty miles from Heaven, but forty miles may be a long way if communications get interrupted[12]

Ceylon was unquestionably Jennings’ most important assignment in a career that would later take him outside his native Britain across the globe as a constitutional adviser and expert including Australia, Burma, Canada, Cyprus, Eritrea, the Gambia, Ghana, Gibraltar, Hong Kong, India, Jamaica, Kuwait, Malaya, the Maldives, Malta, Nepal, New Zealand, Nigeria, Pakistan, Rhodesia and Nyasaland, Singapore, South Africa, Sudan, and Uganda. Jennings spent over a third of his career in Ceylon and he clearly enjoyed an influence and political intimacy at the highest levels there that was never reproduced, including in Britain, anywhere else. Ceylon was to many the model to follow and Jennings was effective through his writings and role in promoting this view. This confidence and “gentlemanly” transfer of power constitutionally underwritten by Jennings enabled Sir Oliver Goonetilleke, as Governor–General, to cockily proclaim to the Manchester Guardian in early 1956 before the heavy U.N.P. defeat that not only was Ceylon ‘the best Colony ever’, but added ‘with a happy smile’, the ‘safest bet in Asia’.[13] In Problems of the New Commonwealth Jennings outlined four conditions for the successful transfer of power, which are clearly based on his experience in Ceylon.

There must be a sufficiently large group of educated politicians to whom power can be transferred.

The balance of power should be settled before independence

There should be a transitional constitution, under which the local politicians should be able to gain experience while Britain maintains law and order and economic stability.

Time must be allowed for the permeation of the public service with local men.[14]

The above typology was written in 1958, the year the country, no longer under D.S. Senanayake, experienced its first Sinhalese–Tamil riots. Jennings nonetheless, like many thought this was an aberration and that the constitution and country would recover the equanimity it enjoyed under its first prime minster.

I find it difficult to believe that the average villager, who always seemed a very sensible fellow really wanted the present Government. This may be a mere prejudice, based on preference for the compromise which I helped to establish in 1948, and dislike of some of the forces which seemed to be operating in 1956. However, we shall know more in 1960 [when the next election was scheduled].[15]

Just prior to his death in 1965 Jennings looked back at Ceylon and could see that the abuse of ethnic–linguistic divisions was no aberration. In fact it crippled the constitution he crafted and exposed its flaws, particularly the weakness of not having stronger protections for the public expression of all communities’ identities. Reflecting on the period covered in this book he dolefully admitted ‘all that seemed necessary, when the first drafts were made in 1943, was a fairly broad non–discrimination clause’;[16] a verdict echoed more forthrightly and sorrowfully by Lord Soulbury two years earlier in 1963. Soulbury, who Jennings of course worked with, saw that if only their mutual friend “D.S.” had lived longer things would have been different. In addition, as will be seen below in the book, their earlier confidence in inter–communal unity and corresponding belittling of firmer constitutional recognition of minority rights unravelled.

But had Mr D.S. Senanayake, the first Prime Minister of independent Ceylon, lived I cannot believe that the shocking events of 1958 and the grave tension that now exists between the Tamils and Sinhalese would ever have occurred. Mr Senanayake would have scorned the spurious electoral advantages that a less far–sighted Sinhalese politician might expect to reap from exploiting the religious, linguistic and cultural differences between the two communities, for it was his policy to make Ceylon a united nation and, as he told the State Council in November 1945 in his great speech recommending the proposals of the British Government, ‘The Tamils are essential to the welfare of this island’. Unhappily…the death of Mr D. S. Senanayake led to the eventual adoption of a different policy which he would never have countenanced. Needless to say the consequences have been a bitter disappointment to myself and my fellow Commissioners…I now think it is a pity that the Commission did not also recommend the entrenchment in the constitution of guarantees of fundamental rights…Nevertheless the reconciliation of Tamils and Sinhalese will depend not on constitutional guarantees but on the goodwill, common sense and humanity of the Government in power and the people who elect it.[17]

M. de Silva believes Jennings was the one who had dissuaded Senanayake, who had been sympathetic, not to include an explicit and entrenched Bill of Rights as it would be unnecessary and unfaithful to the traditions of Westminster as espoused by Jennings.[18] The Ceylon press carried a review by Henry Fairlie, which ‘pilloried’ Jennings’ poorly received Party Politics. Fairlie ended his contemptuous review ‘Sir Ivor has helped to give constitutions to Ceylon and Pakistan. It is no wonder that such countries doubt the relevance of parliamentary democracy to their problems if this is what they have been taught about British politics’.[19] Whatever else for Jennings, like Soulbury and many others, the prevailing political calm conditions of the mid 1940s made communal separatism and identity rights advocacy seem a debating argument not to be taken seriously, particularly with the bonhomie balm of pan–Ceylonese unity as exhibited and expressed by their friend Senanayake.

It is no accident that Dr W. Ivor Jennings became Sir Ivor Jennings K.C. during the Senanayake premiership.[20] Jennings, Senanayake and Goonetilleke formed a negotiating triumvirate that was nearly unbeatable and they remained thoroughly dedicated to each other and rarely operated in the years leading to independence without consulting each other on constitutional and political matters. Famously Jennings never held a formal or paid post as Senanayake’s adviser, but all whether in admiration or contempt in Ceylonese political circles knew of Jennings’ constitutionally ubiquitous role.

[Jennings noted] I once asked a Sinhalese lady…what people could possibly find to talk about in their gossip on verandas which is I find the major industry of the Island. With conscious exaggeration she said “We first talk about scandals which have happened and then about the scandals which might possibly have happened; finally we invent scandals”.[21]

For many in Ceylon it was a scandal that Jennings was acting as Senanayake’s Svengali. As the local press commented on his departure ‘There were many deeply suspicious of his close association with Mr D.S. Senanayake and Sir Oliver Goonetilleke, and believed that he was there as a part of an unholy trinity to provide legality for international horse–trading in Ceylon’s freedom. There were others like Dr N. M. Perera who stung into anger by Sir Ivor’s nimble and rather cruel wit, retorted that he was a “specialist in omniscience”’.[22] Naturally this ‘tall, bent, slightly moth eaten figure’, as the Ceylon Observer described him, attracted many such comments that with varying accuracy attempted to belittle Senanayake’s eminence gris. The Balliol educated and future Cabinet minister and Tamil firebrand C. Suntharalingam was a particular bête noir who resigned as the first chair of Mathematics because he believed Jennings’ ‘appointment was an insult to Ceylon’ due to his being an Englishman and continued in press or in person to attack the role of Jennings in the country.[23]The redoubtable Mervyn de Silva used his columns across the English press with cutting effect to denigrate the man who ‘betrays the insularity of the Englishman and the sophomoric wit of the third speaker in a Union Society debate’. Jennings had presided over the university when de Silva was an undergraduate.

As Vice–Chancellor Jennings went from success to success in this country, from Commission to Commission, and finally to the exalted position of one of the architects of Ceylon’s independence, and thence to a knighthood, the patronising air with which he looked upon the campus was extended to cover the whole nation. And when, with Ceylon as a base, his influence broadened out to cover neighbouring countries Pakistan, Malaya, the Maldives which consulted him on constitutional matters, he found it possible to patronise a whole continent. It is a fact that at least two of these countries have been riddled with constitutional crises and catastrophes since Sir Ivor left their shores. But to match Sir Ivor’s own manifest modesty if for no other reason, we refuse to credit our ex–Vice–Chancellor with responsibility for these historic events![24]

Nonetheless, it is possible to detect occasional dull rays of respect for Jennings’ authority and deftness with his intellectual skill and provocations ‘provided you can stomach his air of Olympian infallibility which often makes it appear that he is not so much expounding the law as laying it down’[25] – a sentiment most likely shared by some local legislators and CO officers. The Left in particular distrusted Jennings, along with Senanayake and Goonetilleke, not so much for him being an Englishman, but more for his firmly advocating what they saw as “sham independence”. This was a gradualist and passive path to self–government within the Commonwealth under the Crown in the Dominion tradition of the settler states. This method to them and others was comparably dull and made any claim of freedom illegitimate as opposed to mass agitation and socialist revolution. The erudite and epicurean Leftist elite that mesmerised Ceylon and captivated campus politics would not have been amused by the Vice–Chancellor’s

supercilious smile with which he was accustomed to discuss Union Society politics. When Samasamajists fought Stalinists and Stalinists punched Bolsheviks. Sir Ivor just shrugged his frail shoulders and remarked with a supposed pained bewilderment: “I’m sorry, gentlemen, I can’t distinguish the sheep from the goats nor the salmon from the mackerel”.[26]

Not only did Ceylonese locals disparage his influence. The CO was deeply suspicious of Jennings. Ceylon Civil Service hands like the Governor, Chief Secretary and Legal Secretary criticised, privately, the man they believed was undermining their own influence and relegating their role in constitution–making to checking drafts. As Caldecott complained to Whitehall

[T]he Ministers have never once mentioned to me, much less discussed with me, the progress of their deliberations. They received, I have reason to believe, the constant co–operation of Dr. Ivor Jennings who, however great an authority on the British and other constitutions, naturally knows less about Ceylon politics than the Ministers themselves and is not a legal draughtsman. I understand also that the Ministers sought the views of the Officers of State but that these are not reflected in the draft scheme.[27]

The CO often agreed and commented that one of Jennings’ drafts ‘would be quite useless as a Constitution, despite the fact that it was drafted by Dr. Ivor Jennings’.[28] The Vice–Chancellor was more than capable of returning such barbs and often insulted and shocked in order to improve the reply. Though this taunting method did not always work. In a report of a talk he gave to a joint meeting of the Curia Historica and Economic Society of the University he said nationalism was a lower middle class emotion that would be dead in Ceylon in 50 years.

Sinhalese, he said, was an ineffective means of communication because it lacked a great literature. “All that Sinhalese literature consisted of, was the output of three novelists.” ‘No questions were asked of Sir Ivor at the end of the talk. Sir Ivor then asked: “Are there no nationalists bold enough to question me?”[29]

How many across the world, including Sri Lanka, would echo then or now the following prayer from his memorial service?

“Let us give thanks to God for the life and work of William Ivor Jennings, for his unsparing labours in the cause of justice and government throughout the Commonwealth”

*****

Jennings’ prolific publishing skills ensured his travels and unique international experience figured highly in his writings. However, in his works on Ceylon (and elsewhere) beyond prefatory platitudes there was little substantial evidence or information of his personal involvement in the constitution–making. In the main text of his important The Constitution of Ceylon, for example, the reader would have to know from other sources that the elliptical line ‘Experimental drafting of a Constitution had already begun’[30] refers to work carried out by Jennings himself. As was mentioned above in his broadcast on leaving the Island Jennings promised to write down his personal account of the transfer of power, which he repeated in the preface to the first edition of The Constitution of Ceylon. Unlike India and Pakistan where both Jawaharlal Nehru and Mohammad Ali Jinnah left massive volumes of documents and correspondence on their time as the pre–eminent leaders of their states Senanayake left nothing for posterity.[31] In addition to these rich editions are not only Nicholas Mansergh’s magisterial twelve volume Constitutional Relations Between Britain and India – The Transfer of Power 1942–7 (1970–83) documenting the high politics and negotiations with Britain for independence, but also key reference texts publishing first hand accounts from other local sub–continent perspectives in the Indian Council of Historical Research’s Towards Freedom (1999–) series giving voice to those on the ground and beyond the Lutyens–Baker imperial metropolis of New Delhi.

Ceylon/Sri Lanka has not been so well served. Michael Roberts has collected in his four volume Documents of the Ceylon National Congress and Nationalist Politics in Ceylon 1929–50 (1977) significant primary documents of the main organ of elite constitutionalists in the island. K. M. de Silva has added immensely to our understanding of Ceylon’s path to independence by expertly editing two volumes of documents taken from the British National Archives, mainly from the Colonial Office, in the British Documents on the End of Empire Project series run from the Institute of Commonwealth Studies, London as well as a long introduction that skilfully elucidates the complex negotiations for Ceylonese self–rule. However, as de Silva recognizes a major gap exists when compared to India (and elsewhere in Asia) of not having significant accounts from key Ceylon based personnel on the transfer of power. De Silva had used the Jennings papers housed at the Institute of Commonwealth Studies in Russell Square, London. The collection contained through Jennings a key first hand resource both in terms of primary documents and personal accounts of a figure directly involved with Senanayake and the approach to power. Though far from being his amanuensis, Jennings did “write up”, a process he describes below, Senanayake’s thoughts and objectives into a form able to be sent to the legislature, Queen’s House or London. According to Jennings this extended to the Board of Ministers: ‘With I think one exception, I drafted every formal document sent by the Ceylon Ministers to the Secretary of State between 1943 and 1948’.[32] De Silva noted in his introduction that Jennings had unusual access to a great deal of confidential information and he used it to good purpose in drafting the book on the transfer of power that he had in mind… it is indispensable for any serious study of the transfer of power in Ceylon…[Jennings] knew more than anyone else that Senanayake and Goonetilleke could not have negotiated so successfully with the CO mandarinate and British politicians, to say nothing of the governor and the officers of state in Colombo, without the expertise on constitutional matters which only he could have provided. That rich expertise he placed at the disposal of Senanayake and Goonetilleke with a dedication and generosity unmatched by any expatriate adviser on constitutional affairs in any other colony seeking independence from Britain. It would also be true that few constitutional advisers, indigenous or expatriate, had as great an influence in determining the shape of the post–independence constitutional framework of a colony as Jennings had in the case of Ceylon. Governor Caldecott (and to a lesser extent his successor) and the officers of state were distinctly unhappy about the extent of Jennings’s influence in the negotiations on the transfer of power. In giving guarded but occasionally pointed expression to their feelings in this regard they reveal a facet of the negotiations on the transfer of power not generally noticeable in the CO records published in this volume – the extraordinary role of Jennings as Senanayake’s unofficial constitutional adviser … Had Jennings’s two books, presently in draft form, been published, a substantial amount of new information on the Ceylonese side of the story of the transfer of power would now be available, even if provided by an unusual Englishman. As it is considerably more information exists on British policies and initiatives – although the information is admittedly rather slight in comparison with that which is available for the cognate process in India and Burma – than material illustrating the independence movement in the island from the Ceylonese viewpoint.[33]

H.A.I. Goonetilleke brought to publication two key texts of Jennings’ never published in his lifetime. The Kandy Road (1993) narrates his substantial contribution to the creation of the University at Peradeniya and The Road to Peradeniya is his autobiography. While valuable in a biographical manner they are light in their revelations of his role in Ceylon’s independence. Constitution–Maker: Selected Writings of Sir Ivor Jennings (2015) contains useful material, but this mainly covers Jennings’ post–independence phase in Ceylon. De Silva mentions two books in draft – one is The Road to Peradeniya – the other is Donoughmore to Independence – A Contribution to the Constitutional History of Ceylon, 1931–48. This forms the most substantial manuscript Jennings left on the transfer of power and gives his personal account on independence negotiations. Here he is openly in the pages in a way he is definitely not in The Constitution of Ceylon. This forms the basis for the text of this book, with the addition of other key primary documents.

Unlike most of his academic works this book has gossip, informality and personal anecdotage along with serious constitutional and political discussion. As argued above the great lacuna of Sri Lankan independence historiography has been the dearth of private papers and personal accounts covering this crucial period. This book goes someway to filling in some details previously unknown or surmised without evidence. The release of tranches of colonial era documents from British archives made available well after the death of Jennings and those involved in Ceylonese high politics allows scholars and students significant primary information of crucial importance. However, this does not and cannot give enough to understand the approach to power since it misses the critical perspectives of the Ceylonese dramatis personae. As an illustration of this an examination outside of de Silva’s introduction of the official documents contained in the BDEEP two volumes approaching 900 pages brings just a few brief mentions of Ivor Jennings in just seven documents – despite his massive role in the transfer of power, which compelled later legal luminaries like Neelan Tiruchelvam to describe the first constitution the “Jennings Constitution”.[34] Similarly, formal documents of the Ceylonese ministers unmistakably carry his imprimatur, but never his signature. Perhaps his “unofficial” status prevented further mention – though his importance was nonetheless enough to merit the Governor, Sir Andrew Caldecott, instructing the Government Censor to intercept Jennings’ mail and on one occasion forward its contents to the CO.[35] As Jennings himself observes below ‘History drawn from documents is apt to mislead because the importance of personal influences is rarely placed on record and indeed such influences are difficult to assess’.

Jennings left on the Anora for Karachi on 19 January 1955 generating neither fanfare or brickbats that one might have expected from the departure of this seminal figure in Ceylon’s history. As the Ceylon Observer commented

We would have liked to see Ceylon showing her appreciation to Sir Ivor’s work in a much more ‘marked’ manner…when a representative cross section of the people of this country could have expressed their sense of awareness of the debt of gratitude we owe to him. The fact that only the University Dons were sufficiently moved by the occasion to do honour to him is a sign of the times. Even those people who wait with bated breath for the slightest opportunity of organising ‘farewells’ and ‘welcome banquets’ have taken a vacation…It is a matter of deep regret for us that even those men high up and deep in Government, who must surely be aware of Sir Ivor’s massive contribution to the attainment of our independence, have not been sufficiently grateful or gracious in this matter. But we know that Sir Ivor himself will be inclined to treat the whole thing as a bit of a joke – in rather bad taste – and to file it away in his capacious memory as a possible titbit for a half–amused, half–rueful footnote for a pithy volume of Ceylon. Perhaps his next literary venture will be a history of Ceylon since Independence – there is no one better to chronicle it.[36]

The episode is not found in a footnote or elsewhere in the Road to Temple Trees, but the “pithy” personal volume on Ceylon is here, finally, fifty years after his death as a resource to get one, but exclusively insightful, view of the complex, unique and shrouded steps to freedom.

[3]CM, p 20. On signing the agreements at Queen’s House where Ceylon ceased to be a Colony Senanayake was told that by tradition champagne was drunk for the first toast. He obliged, but ‘pronounced it to be poor stuff, not up to the standard of sweet toddy’. Ibid. p 21